The Jerusalem Post reported on December 20 that the IDF "would surprise the settlers with what the army termed 'paralyzing force.'" It has been further reported that special forces would be used in raids against settlers if needed. Several days previously, the Post reported that rabbis from the hesder yeshivot criticized Defense Minister Ehud Barak for suspending Har Bracha from the hesder program stating that the army is "being used for purposes that are not related to the defense of Israel."
Many automatically dismiss the rabbis statements as the ill-founded statements of religious "fanatics". In light of the actions contemplated against the settlers, this hasty conclusion is inappropriate. Recall that only three years ago, chief of General Staff Dan Halutz fired OC Ground Forces Maj.-Gen. Yiftah Ron-Tal for making the virtually identical statement, i.e. "Did the army have to participate in the disengagement. It wasn't its job..."
No one, including Halutz, considers Ron-Tal a religious fanatic. The question Ron-Tal asked in the context of the Gaza disengagement is equally valid with respect to the building freeze in Judea and Samaria.
Both the rabbis and Ron-Tal are focusing on a critical problem confronting all democracies: how to ensure that the elected civilian government controls the military. This is not an issue of right wing versus left wing on the peace issue. Regardless of one's policy view of the wisdom or folly of the building freeze or the Gaza disengagement, use of the armed forces against civilians is a grave step that should be tightly circumscribed. Unfortunately, Israel's legal framework lacks safeguards adequate to prevent inappropriate use of the military. This is a grievous error that can seriously damage the unity of the army upon which national defense depends.
IN THE United States, use of the armed forces in civilian law enforcement is generally a felony punishable by two years in prison. The Posse Comitatus Act was passed in response to the South's harsh experience with the military during the Reconstruction era. PCA prohibits the use of the army in civilian law enforcement. While in form only a statute, it has been accorded quasi-constitutional status as embodying the fundamental American principle of the supremacy of civilian over military authority.
PCA prevents damage to military readiness by reducing political controversies within the armed forces, an institution that requires unquestioning obedience. Additionally, it prevents the use of army personnel, untrained in respecting citizens' rights when engaged in law enforcement. American military doctrine mandates the use of virtually unrestrained force to "shock and awe" the enemy; civilian police are trained to use minimum force in dealing with citizens.
PCA does not absolutely proscribe the use of the military in civilian law enforcement. Its restrictions can be overridden by express congressional action; in fact, legislative exceptions have occasionally eroded this salutary rule. (The National Guard, as a state militia, is not subject to its provisions.) In the 1980s and 1990s, Congress improvidently authorized use of the armed forces in drug enforcement as well as in times of acute civil disturbance and other nation threatening emergencies, e.g. nuclear. However, PCA - whose English law antecedents date back to the Assize of Arms (1181) - remains robustly valid today.
The policy considerations underlying PCA are of even greater concern in Israel's fledgling democracy, where generals routinely parachute directly from their army posts into the most senior political echelons and democratic ideals are not deeply rooted in 240 years of history. At various critical points in the Israel's relatively short history, there has been some risk of the army overriding civilian authority. It may be true that foes of the settlement freeze and the Gaza disengagement who urge soldiers to disobey orders have endangered the unity of the IDF. However this unity is also damaged when governments, without Knesset authorization, order the army to take action against civilians, whether those civilians are Jews or Arabs.
Understandably, in the heat of a crisis, short-term concerns often dominate the government's considerations. This underscores the need for a preexisting legislative framework outlining the exceptional circumstances during which the government may use the IDF against Israeli civilians. Even the strongest proponents of the settlement freeze and Gaza disengagement should shudder at the notion that the IDF will use "paralyzing force" against civilians for the sin of building expansion. Whatever the abstract merits of those policies, the long-term consequences to democratic control of the military must also be taken into account.
OTHER ALTERNATIVES exist. Why has not the government learned the lessons of Amona and Gaza and trained adequate numbers of police to obviate the perceived need for using the IDF against civilian opponents? William H. Taft, counsel to the US Defense Department, surely got it right 25 years ago when he said that "military involvement in civilian affairs consumed resources needed for national defense and drew the armed forces into political and legal quarrels that could only harm their ability to defend the country."
The justice of the High Court, who sanctioned IDF use in the Gaza evacuation, set a dangerous precedent. By sanctioning the use of the IDF against civilians to enforce policies they favor, the justices will be hard put to forbid the use of the IDF when government policy is not to their liking. Thus the principle of civilian control of the military and its handmaiden, forbidding use of the armed forces against civilians in all but the most dire of circumstances, ideally should be a basic law, adopted after the most sober considered deliberation.
It is past time for the Knesset's Constitution, Law and Justice Committee to hold hearings on a bill designed to resolve this governance issue in accordance with fundamental democratic norms. If hearings are delayed until the IDF inflicts substantial casualties among Israeli citizens, politicization of this vital issue is inevitable and rational discussion will be impossible.
Ron-Tal and the rabbis have both raised a vital question which demands a thoughtful but expeditious answer. In the absence of authorizing legislation, if the IDF is used in enforcing a settlement freeze, damage will be done to the principle of civilian control of the military and if this principle is further eroded, Israel's democratic institutions will suffer significant avoidable injury.
The writer is a human rights lawyer based in New York. A graduate of Yale College and Yale Law School, he was a partner for most of his professional career in the New York law firm Simpson Thacher and Bartlett, where he is currently counsel.
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